Taking Precedent Seriously 5

on safe ground in suggesting that its practitioners are united upon two core propositions: first, that an authentic Jewish prac­tice must express itself largely, though not exclusively, in halak­hic terms; and second, that this halakhah does not and need not conflict with the progressive values that must form the basis of our Jewish experience. Accordingly, our scholars have written extensively on numerous questions of Jewish law, seeking to demonstrate that the halakhah is sufficiently flexible and dynamic to support liberal and progressive solutions to questions of ritual and ethical observance.” These solutions, by their nature, often involve the sort of creative interpretation that will elicit new meanings from the literary sources, frequently departing from the decisions of past authorities.'” It is here that the doctrine of precedent poses a potentially serious and even crippling diffi­culty to us. Putting it bluntly: to the extent that pesak, halakhic decision-making, is constrained by the weight of past decisions, then the Orthodox are right and we are wrong: Jewish law is not sufficiently flexible and dynamic to support the kind of pesak that we favor, so that our attempts to read it as such amount to a dis­tortion of the essence and substance of the halakhah. On the other hand, should precedent operate in a strictly limited fashion within Jewish law, then we would have strong grounds on which to contend that the halakhah supports a maximum degree of free­dom of interpretation and that our interpretations, even though new and“unprecedented,” are as halakhicly legitimate as those of Orthodox poskim.

The results of my inquiry are decidedly mixed. While acad­emic scholars of Jewish law, drawing upon theoretical and pro­grammatic statements scattered through the Talmud and the post-Talmudic literature, declare that the halakhah recognizes no doctrine of binding precedent, sufficient evidence exists to sug­gest beyond much doubt that precedent, the collected weight of post-Talmudic Jewish jurisprudence, exerts a powerful con­straining force upon the decision rendered by the contemporary authority. Yet I also hope to show that this situation closely par­allels that which prevails in two other representative legal tradi­tions—European“civil law” and Anglo-American “common law.” In both of these systems we find the creative tension, of which I spoke earlier, between the healthy respect for precedent and other tendencies that serve to free the judge from slavish dependence upon the rulings of the past. A balance is struck,